Section 35 of the IRPA makes individuals inadmissible to Canada for committing or being complicit in human rights violations or war crimes. To defend against deportation, applicants often must prove to the Immigration Division that they were not “complicit” in the atrocities or were acting under extreme duress.
Canada has a strict legal framework designed to prevent the country from becoming a safe haven for individuals involved in war crimes or crimes against humanity. 🚨 Under Section 35 of the Immigration and Refugee Protection Act (IRPA), anyone suspected of committing, or being complicit in, severe human rights violations abroad faces immediate inadmissibility and deportation. This applies regardless of whether the individual is applying for a visitor visa, claiming refugee status, or has already lived in Canada as a Permanent Resident for years.
Being accused under Section 35 carries a profound stigma and massive legal consequences. The Canada Border Services Agency (CBSA) acts as the enforcement arm, bringing these cases before the Immigration and Refugee Board (IRB). Fortunately, Canadian law recognizes that not everyone associated with a problematic government or military regime is actually guilty of a crime. Defending against these allegations requires demonstrating your lack of active complicity, proving duress, or challenging the evidence presented by the Minister. This guide outlines the federal process for fighting a Section 35 deportation in Canada.
Step-by-Step Process for Section 35 Defences
Because Section 35 cases involve international law, historical events, and complex legal standards, the defence process is highly rigorous. 📋 It requires navigating federal immigration tribunals and, frequently, the Federal Court.
Step 1: Navigating the CBSA Interview
The ordeal usually begins with a comprehensive interview by a CBSA officer. They will heavily scrutinize your past employment, military service, and political affiliations in your home country. It is crucial not to guess or provide inaccurate historical dates during this interview, as inconsistencies will be used to draft a Section 44 Report recommending your deportation. Having a lawyer present or consulting one before providing written statements to IRCC or CBSA is strongly advised to ensure your words are not taken out of context.
Step 2: Assessing the “Complicity” Standard
Your legal defence will often hinge on the concept of complicity. 📄 In Canadian law, simply being a low-level employee (such as a cook, a clerk, or a low-ranking conscript) in an organization that committed human rights violations does not automatically make you complicit. Your lawyer will gather evidence to show that you did not make significant contributions to the crimes, that you had no command responsibility, and that you distanced yourself from the atrocities at the earliest possible opportunity.
Step 3: The Admissibility Hearing at the ID
If the CBSA proceeds, you will face an Admissibility Hearing at the Immigration Division (ID). Here, the Minister’s Counsel must establish that there are “reasonable grounds to believe” you are described in Section 35. This is a lower standard of proof than in a criminal court. Your defence strategy will involve calling expert witnesses (such as historians or country condition experts), presenting documentary evidence, and cross-examining the government’s assertions to prove your non-involvement or that you acted under severe duress.
Step 4: The Pre-Removal Risk Assessment (PRRA)
If the ID issues a deportation order, you may be entitled to a Pre-Removal Risk Assessment (PRRA) before being physically removed from Canada. 🌎 However, individuals inadmissible under Section 35 are usually only eligible for a restricted PRRA. This means that even if the officer finds you face a risk of torture or death in your home country, you will not receive refugee protection; rather, your removal might simply be temporarily stayed (delayed) until it is safe to deport you.
How Much Does it Cost in Canada?
Fighting a Section 35 allegation is an intensive process that often requires external experts and substantial legal hours. 💰 While the IRB does not charge hearing fees, the surrounding costs in CAD are significant.
| Legal / Administrative Expense | Estimated Cost (CAD) | Explanation |
|---|---|---|
| Country Condition Experts | $1,000 – $4,000 | Historians or academics hired to testify about your regime/military. |
| Document Translation | $300 – $2,000+ | Certified translations of military records or court documents. |
| Federal Court Filing | $50 | Government fee to apply for Judicial Review. |
| Lawyer Retainer | $10,000 – $30,000+ | Complex deportation defence requires extensive preparation. |
It is generally vital to budget for these expenses early, as defending a war crimes allegation demands the highest level of legal representation.
How Long Does the Process Take?
The timeline for a Section 35 case is often drawn out due to the extensive research required. ⏳ From the initial CBSA interview to the final ID Admissibility Hearing, the process can take anywhere from 1 to 3 years. If the case proceeds to the Federal Court for Judicial Review, you can expect an additional 8 to 12 months. During this period, you may face conditions such as reporting regularly to CBSA, but you may also be eligible to apply for a work permit to sustain yourself.
Frequently Asked Questions (FAQ)
What constitutes a “crime against humanity” under IRPA?
In Canada, crimes against humanity include widespread or systematic attacks directed against any civilian population, such as murder, extermination, enslavement, or torture, as defined by international law.
I was a regular soldier. Will I be deported?
Not necessarily. Being a regular conscript in a national army does not automatically trigger Section 35. The CBSA must prove that your specific unit was involved in atrocities and that you were complicit in those actions.
Can I appeal a Section 35 deportation order?
No. If you are found inadmissible under Section 35, you do not have the right to appeal to the Immigration Appeal Division (IAD). Your primary recourse is to seek Leave and Judicial Review at the Federal Court.
What is the defence of duress?
The defence of duress argues that you only participated in or remained with the offending organization because of an imminent threat of death or serious bodily harm to yourself or your family if you deserted.
Can I apply for Humanitarian and Compassionate (H&C) relief?
Unfortunately, individuals deemed inadmissible under Section 35 are legally barred from applying for permanent residence on Humanitarian and Compassionate (H&C) grounds.
Does a pardon in my home country help?
A foreign pardon or amnesty for human rights violations is generally not recognized by Canadian immigration law when assessing Section 35 inadmissibility. The CBSA conducts its own independent assessment.
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